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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

United Media Limited Liability Company v. Eric Wolf

Case No. D2007-0631

 

1. The Parties

The Complainant is United Media Limited Liability Company, Moscow, Russian Federation, represented by an internal representative, Russian Federation.

The Respondent is Eric Wolf, Hertzelia, Israel.

2. The Domain Name and Registrar

The disputed domain name, <mosnews.com>, (the “Domain Name”) is registered with Register.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2007 in electronic form and on May 23, 2007 in hardcopy form. On April 27, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 31, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 21, 2007.

The Center appointed Tony Willoughby as the sole panelist in this matter on July 3, 2007. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On July 17, 2007, the Panel issued a Procedural Order requesting further information from the Complainant and requiring a response by July 23, 2007. The Complainant filed a response on July 19, 2007. That response was then forwarded by the Center to the Respondent, who was given until July 26, 2007 to file a submission in reply. The Respondent did not respond.

 

4. Factual Background

The Complainant is a company incorporated in the Russian Federation. It is engaged in the production and distribution of newspapers, including in particular The Moscow News, a newspaper, which was first published over 70 years ago.

The Complainant is the proprietor of Russian Federation trademark registration no. 100300 dated March 20, 1991 for the mark, MOSCOW NEWS, in classes 16, 35 and 41 covering inter alia newspapers and publishing services.

On January 1, 2006, the Complainant commenced legal proceedings in Moscow against two individuals for trademark infringement in respect of the defendants’ use of the Domain Name.

By a decision dated September 11, 2006, the presiding judge of the Babushkinskiy District Court of Moscow held inter alia that:

1. The Domain Name was registered in the name of one of the defendants.

2. The Domain Name is confusingly similar to the Complainant’s trademark, “Mos” being a well accepted abbreviation of “Moscow”.

3. The Domain Name was being used to connect to a news website devoted to news from Russia/Moscow.

4. That use infringed the Complainant’s trademark rights.

The Panel adopts as fact those findings of the Russian court.

On a date unknown, but following the court decision, the Domain Name was transferred to the Respondent. As at April 5, 2007, the Registrar’s Whois database recorded the Respondent as being the registrant of the Domain Name.

As at May 31, 2007, the Domain Name was still connected to a news website devoted to news about Russia/Moscow.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to its Russian Federation trademark, MOSCOW NEWS.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name, contending that none of the examples set out in paragraph 4(c) of the Policy is applicable.

Finally, the Complainant contends that the Domain Name was registered and is being used in bad faith. The Complainant asserts that, the defendants in the above-mentioned legal proceedings, registered the Domain Name for the purpose of “getting work” from the Complainant. Indeed, the Complainant duly entered into an agreement with them for the development of a website, but the Complainant had been under the impression that the Domain Name was registered in the Complainant’s name. In due course, they were dismissed from the Complainant’s service and took with them the Domain Name and control of the website.

The Complainant contends that the Domain Name was transferred to the Respondent to obviate the effect of the injunctions issued by the Moscow court.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered and is being used in bad faith.

B. Identical or Confusingly Similar

As indicated above, the Moscow Court has already held that the Domain Name is confusingly similar to the Complainant’s trademark.

The Panel sees no reason to take a different view and holds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights.

C. Rights or Legitimate Interests

The Complainant has asserted that the Respondent took a transfer of the Domain Name simply to avoid the effect of the injunctions issued by a Moscow court last year against the previous owner of the Domain Name. Following the transfer, the offending website remained connected to the Domain Name.

The Panel agrees with the Complainant that the Respondent has no obvious connection with the Domain Name. Moreover, the Panel cannot think of any reason why the Respondent could reasonably be said to have any rights or legitimate interests in respect of the Domain Name.

The Complainant has made out a prima facie case and it is for the Respondent to answer that case; however, the Respondent has not responded.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered and Used in Bad Faith

While many of the factual assertions made by the Complainant are not supported by documentary evidence, the exhibited decision of the presiding judge of the Babushkinskiy District Court of Moscow dated September 11, 2006 is clear. The Respondent’s predecessor as registrant of the Domain Name was using the Domain Name in infringement of the Complainant’s trademark rights. The court issued injunctions to restrain the defendants in that action from continuing to use the Domain Name.

As at the end of May this year, the Domain Name was continuing to be used in infringement of the Complainant’s trademark rights, but at some stage in the intervening period the Domain Name had been transferred to the Respondent, an individual with an address in Israel and beyond the jurisdiction of the Moscow court.

The obvious inference is that, as the Complainant asserts, the Domain Name was transferred to the Respondent, not because he has any right or legitimate interest in respect of it, but simply to evade the effect of the above-mentioned injunctions.

The Respondent has had two opportunities in the course of this administrative proceeding to respond to the Complainant’s allegations, but has elected not to do so. The Panel is ready to assume that he has no answer to the allegations.

While the acquisition of a domain name for the purpose of assisting a third party to continue to use that domain name to infringe a person’s trademark rights is not expressly referred to in paragraph 4(b) of the Policy, it is clearly an abusive act. It is an act calculated to disrupt the Complainant’s business and to cause confusion and deception of Internet users.

The Panel finds that the Domain Name was registered and is being used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <mosnews.com>, be transferred to the Complainant.

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Tony Willoughby
Sole Panelist

Dated: August 10, 2007